A lease, either written or oral, is a legal contract which transfers possession and use of a rental property to a tenant for a specified time period. The lease should define the respective rights and obligations of the landlord and the tenant. While a verbal agreement is legally enforceable if it can be proven, it is highly recommended to have a written lease. Many legal disputes arise because of a failure to get an agreement in writing. Every detail of the lease agreement, no matter how small, is worth putting in writing.
The Plain Language Consumer Contract Act 73 P.S. § 2201 et seq, requires that all written residential leases be organized and designed to be easy to read and understand. If a lease contains fine print or “legalese”, then it can be found to violate the Pennsylvania Plain Language Consumer Contract Act. A landlord can be held liable for damages for violating this Act.
The Pennsylvania Unfair Trade Practices Act and Consumer Protection Law prohibits landlords from engaging in deceptive or fraudulent practices. This includes misrepresenting the condition of a rental unit and lying about damages in order to fraudulently retain the security deposit.
It is critically important as a landlord, that you have a well written lease which complies with Pennsylvania Landlord Tenant Law and also addresses additional issues such as smoking, guests, animals, subletting, etc.
Read the lease with your tenants. Do not expect them to read it on their own. Have them initial each page as you review it to verify that they understand it.
- Remember, a lease is a legally binding contract. You are legally responsible for all the provisions in a lease.
- Make sure the tenant understands the terms of the lease before signing it. By signing it, both parties agree to its terms and conditions for the duration of the lease agreement.
- Make sure that all blanks are crossed out or filled in before the lease is signed.
- Anything that is crossed out should be initialed by the landlord and the tenant.
- Make sure to give the tenant a copy of the entire lease and to keep your copy in a safe place. It is a good idea to scan and keep a digital copy of the lease so that it is always available when needed.
You will want to make sure the following are included in your lease:
- Landlord’s name, street address, email, and telephone number for emergencies
- Tenant’s name and the name of others who are permitted to occupy the unit
- Address of the rental property
- Amount of monthly rent — make sure tenants understand how, where, when, and to whom the rent is to be paid
- Rent due date
- Late fees and penalties for lease violations
- Start and end date of the lease — is it a one year lease or a month to month lease?
- Requirements for notices to renew or terminate leases — how much notice do you have to give a tenant to move out and how much notice does the tenant have to give the landlord when they want to move out? (Note that in Pennsylvania, leases can waive or shorten the statutory notice period required before filing an eviction.)
- Does the lease renew on a yearly basis or does it revert to a month-to-month lease after the first year?
- Security deposit — make sure the tenants understand what is required of them when they move out of the rental unit in order for their security deposit to be returned.
- Utilities — clearly outline who is responsible for paying each utility.
- Maintenance — what are the tenant’s responsibilities for maintenance and who should they contact when repairs are needed?
- What appliances are included in the lease?
- Pet agreement and any pet security deposit.(Remember, security deposits and pet fees may not be charged for assistance animals.)
Changes to the Lease
Any changes to the lease should typically be made at the beginning of a new rental period when the lease is renewed, unless both parties agree to a proposed change before the end of the lease term. Unless the lease specifies how changes are to be made, landlords are required to give one full rental period before any change takes place. However, if a tenant has requested a reasonable accommodation which changes the terms of the lease, the lease should be amended in writing to reflect this change and to document the agreement of both parties.
Common Lease Provisions
- Tenants must keep the dwelling clean.
- Tenants may be prohibited from subletting the dwelling without the landlord’s consent.
- Tenants may be prohibited from moving or breaking the lease without giving proper notice.
- Landlords are permitted to enter the property at reasonable times for inspection, repair, or to show it to potential tenants, provided the current tenants are given prior notice.
- Name of person to contact and how to reach that individual for maintenance and repairs.
- A list of regulations the tenant is expected to follow may be included in the lease.
Unenforceable Lease Provisions
Tenants are usually bound by the terms and conditions of the lease they sign, however, some terms and conditions are legally unenforceable in court.
Examples of unenforceable lease terms and conditions include:
- While tenants can be held liable for damages to an apartment, they cannot be made responsible for all normal maintenance and repairs, or all repairs under a certain dollar amount.
- The landlord is not permitted to ban the tenants from having guests to the leased premised.
- A lease provision that requires payment of more than two months’ rent for security deposit during the first year of leasing and more than one month’s rent during subsequent years of leasing is unenforceable.
- The tenant cannot be made to accept the house or apartment “as is.” Under the Implied Warranty of Habitability, the facilities and services provided at the leased premises must allow the unit to be occupied for its reasonably intended purpose as a dwelling unit. Please refer to the section on Repairs and the Implied Warranty of Habitability.
- The tenant cannot waive the right to represent himself/herself in a court of law.
- The tenant cannot be made to agree that if he/she breaks any promise in the lease, the landlord has the right to break into the apartment, change the locks, and seize the tenant’s possessions.
- The landlord cannot make the tenant agree to waive his or her rights to a hearing or confession of judgment.
- Any lease provision that contains a discriminatory element or results in a discriminatory effect on members of protected classes.
Remember: Go over the lease with tenant before they sign it! Put everything in writing!
Rent Due Date
Most leases state that rent is due on the first of the month. Tenants have an obligation to make sure that the rent is paid by the due date specified in the lease. Even if you allow tenants to pay their rent late, they are still bound by the terms of the lease regarding late fees and other penalties. Be clear and upfront about your expectations. Make sure the rent amount and due date as well as late fees are included in the written lease.
Late Rental Payments Without a Fee as a Reasonable Accommodation
Homes built before 1978 may have lead-based paint and homes built before 1950 are more likely to have it. The only way to know for sure if there is lead-based paint is to have a certified inspector test for the presence of lead. When lead-based paint cracks and peels it can become lead dust. Children can get lead poisoning from swallowing flakes of paint or paint dust on their hands and toys. Children can also breathe in lead dust. Even small amounts of lead can cause very serious harm to the brain and other parts of the nervous system. Lead in a child’s body can cause delayed growth and development, damage hearing and speech, and cause learning disabilities. There can be other sources of lead in older homes such as in the pipes or in the soil surrounding the house.
Due to the myriad of health problems caused by lead poisoning, the Residential Lead-Based Paint Hazard Reduction Act was enacted in 1992. This law is commonly known as Title X (Ten). Environmental Protection Agency (EPA) regulations implementing Title X apply to rental properties built before 1978. Be sure to contact your municipality to see if your area has specific requirements regarding lead paint disclosure and remediation.
Title X regulations mandate that before signing or renewing a lease or rental agreement, landlords must disclose any known lead-based paint or hazards on the property. An EPA approved disclosure form must be signed by both the landlord and tenant. This disclosure form proves that the landlord told the tenants about any known lead on the premises. This disclosure form must be kept as part of the property owner’s records for three years from the date that the tenancy began.
An owner or landlord who fails to give proper information and is found liable for damages can be sued for triple the amount of damages that the tenant suffered. The owner may also be subject to criminal penalties and civil penalties of up to $16,000 for each violation.
Landlords must give prospective tenants of buildings built before 1978:
- Any known information or reports about lead-based paint or lead-based paint hazards concerning the building.
– For multi-unit buildings this requirement includes records and reports concerning common areas and other units when such information was obtained as a result of a building-wide evaluation.
- A lead disclosure attachment to the lease, or language inserted in the lease, that includes a “Lead Warning Statement” and confirms that you have complied with all notification requirements. The disclosure form must be kept for up to three years once the tenant signs a lease agreement with the specific rental propertySample Lessor’s Disclosure of Information in English at www.epa.gov/lead/lessors-disclosure-information-lead-based-paint-andor-lead-based-paint- hazards and in Spanish at www.epa.gov/lead/declaracion-de-informacion-sobre-pintura-base- de-plomo-yo-peligros-de-la-pintura-base-de-plomo
Rental Payment Reminders
Carbon Monoxide Detectors
The Carbon Monoxide Alarm Standards Act (CMASA) requires that property owners install carbon monoxide detectors in all multi-family rental units that have fossil fuel burning heaters, appliances, fireplaces and/or attached garages. The property owner must provide and install an operational, centrally located and approved carbon monoxide alarm in the vicinity of the bedrooms and/or any fossil fuel-burning heater or fireplace. The CMASA states that the property owner is responsible for replacing any approved carbon monoxide alarm that has been stolen, removed, found missing or rendered inoperable during a prior occupancy of the rental property before the commencement of a new occupancy of the rental property. The property owner must ensure that the batteries in each approved carbon monoxide alarm are in operating condition at the time the new occupant takes residence in the rental property.
Tenants are required to replace batteries as needed and replace any device that is stolen, removed, missing or rendered inoperable during occupancy and to also notify the rental property owner or agent in writing of any deficiencies pertaining to the carbon monoxide detectors. Your municipality may have additional requirements regarding carbon monoxide detectors.
Landlords have the right to establish no smoking policies in their rental properties. You may choose to ban smoking altogether or you may prohibit smoking only in common areas. Tenants who have disabilities that make exposure to secondhand smoke dangerous can request reasonable accommodations. These accommodations may include installation of air filters and prohibition of smoking in common areas. Some tenants may wish to be released from their leases if secondhand smoke becomes problematic.
Illegal Drug Use
Most landlords carry property insurance which covers property damage but not the tenant’s possessions. You can require that tenants carry renters insurance which covers the tenant’s furniture and other personal possessions. Renters insurance can generally be obtained from any insurance company that sells homeowners insurance and is very reasonable in cost.
Responsibilities of Tenants
To help create a successful tenancy, make sure your tenants understand these basic responsibilities:
- Pay rent when due, not the day after or 5 days after. Tenants are legally responsible to pay the full amount of rent on time in accordance with the lease agreement. If they do not pay their rent on time, the landlord can file an eviction action. If a tenant tells you that they are unable to pay the full amount of rent on time, consider entering into a written payment agreement with them to pay the rent in smaller installments or over a longer period of time. If you agree to a payment plan on back due rent and the tenant does not adhere to the agreement, you can still file an eviction action.
- Whether you accept personal checks, cash, or money orders, keep detailed records of all payments. Give the tenant receipts for all payments. Detailed record keeping will work in your favour if there is a dispute in the future regarding whether rent has been paid.
- Make it clear to tenants that if they are responsible for any utilities, they must be paid on time. If not, this could result in an eviction.
- Both landlords and tenants must comply with all terms and conditions of the lease and with any rules and regulations included in the lease or separately signed addendum(s).
- Both landlords and tenants must comply with the requirements of Pennsylvania law, local ordinances, and housing codes.
- Tenants should not disturb the peace of other tenants and neighbours.
- Tenants are responsible for damages to the premises caused by their negligence (other than normal wear and tear) or by intentional destruction. Tenants are financially responsible for any damages caused by their guests or visitors.
- Tenants should notify the landlord of any serious defects (or needed repairs) in the dwelling that may cause the building to deteriorate. Make sure these notice provisions are outlined in your lease.
- Tenants should keep the premises clean and orderly.
- Tenants must allow the landlord, landlord’s representatives, or local government inspector reasonable access for inspection and repairs. The landlord should give prior notice before entering the unit unless there is an emergency (smoke alarm going off, broken water pipes, etc.).
- Tenants should not allow persons who are not on the lease to live in the rental unit.
- Tenants should not engage or allow anyone to engage in criminal activity, including illegal drugs or allowing underage drinking on the premises. Any of these activities could result in eviction.
- If a tenant wishes to change the locks, then they should get permission from the landlord first and give the landlord copies of the keys. The landlord is legally allowed to have a full set of keys for any locks on their property.
Problems Between Tenants: Harassment and the Fair Housing Act
First, is it a case of personal conflict or is the harassment based on race, color, national origin, religion, sex, familial status, disability, LGBTQ+ status, or age (over 40)? If one of your tenants has reported that they are being subjected to harassment by another one of your tenants due to being a member of any of the state or federally protected classes, you have an obligation to act swiftly. Under the Fair Housing Act, if a tenant harasses another tenant based on their race, national origin, disability, sex, or other protected class, a landlord is required by law to address the issue and prevent the harassment from continuing.
Failing to stop or prevent a tenant from harassing another tenant because they are a member of a protected class, when you knew or should have known the harassment was occurring and had the power to stop it, can leave you legally liable. Address the problem in writing to all parties. A warning should be issued to the tenant who is perpetrating the harassment to immediately cease and desist. Follow up if the problem persists. Keep copies of all correspondence. A well written lease will have a clause that states that tenant harassment is a breach of the lease which can result in eviction. If your lease specifically states that harassing behavior will not be tolerated, then a tenant who is harassing another tenant may be violating the lease and be subject to eviction. Document any and all steps you are taking to address the harassment. Call the police if the situation warrants and get a copy of the police report. Documentation of your actions is critically important in case a fair housing complaint is filed against you for failing to stop harassment behavior or if an eviction is challenged.
A tenant who is being harassed by another tenant may decide to break the lease and move out. If the landlord files in court for unpaid rent, the tenant will need to demonstrate that the landlord was violating the terms of the lease by failing to enforce the right to quiet enjoyment of the property or neglecting to prevent discriminatory harassment. You will want to be able to present evidence that you did everything you could to address the problem of protected class based harassment between the tenants. See Harassment.
The lease should specify who is allowed to occupy the rental property. A landlord can prohibit tenants from having someone move in with them or stay for an extended period of time without the landlord’s permission. Make sure that the lease agreements clearly states who is permitted to occupy the property. If you permit changes to the original agreement allowing additional occupants, make sure it is in writing. You may want to perform background or credit checks on the new occupant and require that they be added to the lease.
If a tenant has moved someone else into the property without permission, you will need to take action to protect your rights. You can issue notice to the tenant that the new occupant must move out immediately or go through the formal application process and screening to be added to the lease. If a tenant has allowed an unauthorized occupant to move into the leased premises, the tenant can be evicted for breaching the lease agreement’s occupancy terms.
If the “subtenant” is unacceptable to you for nondiscriminatory reasons and does not move out, you will have to begin legal proceedings to have them removed. You may need to consult an attorney for advice.
A common reasonable accommodation request is for a tenant who requires a live-in aide for disability- related assistance to be permitted to have the aide live in the unit without being added to the lease as an additional occupant. In this case, subjecting a live-in aide to the usual tenant screening procedures would be inappropriate.
Covenant of Quiet Enjoyment
Pennsylvania Law states that in every lease (whether written or verbal), there is a promise that the landlord will not unreasonably interfere with a tenant’s right to possess the leased premises. This Covenant of Quiet Enjoyment includes the right to privacy and ensures the tenant’s right to enjoy the premises without unreasonable and excessive intrusions by the landlord.
You should ensure that your lease states that the landlord has the right to enter the rental premises for inspection, repair, or general maintenance. If you have reserved the right to enter the leased premises, the tenant cannot object and claim that the Covenant of Quiet Enjoyment is breached.
Even when the lease reserves the right for the landlord to enter the leased premises for repair, maintenance and inspection, landlords only have the right to reasonable access to the leased premises. If a landlord enters a rental unit for no reason or disturbs tenants at night, he or she may be breaching the lease. The landlord does have the right to enter rental premises occasionally for reasonable purpose including inspection and maintenance, repairs, or to show the property to potential buyers or renters. Reasonable also means that the landlord should come at a reasonable time, give the tenant advance notice, and should knock first—unless there is an emergency. If there is an emergency such as broken water pipes or smoke detectors activated, then the landlord has the right to enter immediately without prior notice. When the landlord does not adhere to the general standards as outlined above and repeatedly enters the rental unit without prior notice, the landlord may be cited for trespassing.
A tenant may have a disability such as post-traumatic stress disorder which causes extreme anxiety when a landlord or management enters the apartment for service calls or regular maintenance and inspections. A common reasonable accommodation request is a tenant asking for 24-hour advance notice in a non-emergency situation and for the landlord to provide the tenant with a window of time to expect the visit. The tenant can also request that the landlord or maintenance personnel knock and wait several minutes for the tenant to open the door.
Tenant Noise Violations
Repairs and the Implied Warranty of Habitability
The Pennsylvania Supreme Court in Pugh v. Holmes, 405 A.2d 897 (Pa. 1979), established that a landlord will provide facilities and services vital to the life, health, and safety of the tenant and use of the premises for residential purposes. This guarantee to decent rental housing is called the Implied Warranty of Habitability.
The Warranty means that in every residential lease in Pennsylvania (whether oral or written) there
is a promise (the Warranty) that a landlord will provide a home that is safe, sanitary, and healthful.
A rental property must be habitable to live in and the landlord must keep it that way throughout the rental period by making necessary repairs. Even if the renter signs a lease to take the dwelling “as is”, the Warranty protects the individual. The right to a habitable home cannot be waived in the lease. Remember, the Warranty is in the lease, whether or not the lease says so. Any lease clause attempting to waive this Warranty is unenforceable.
The Warranty does not require the landlord to make cosmetic repairs. The landlord is not required to make cosmetic upgrades or improvements. However, the landlord must remedy serious conditions affecting the safety or the ability to live in the rental unit.
The following are examples of defects covered by the Implied Warranty of Habitability:
- Lack of hot and/or cold running water
- Defunct sewage system
- No ability to secure the leased premises with locks (on doors and windows)
- Lack of adequate heat in winter
- Insect or rodent infestation
- Lack of weather/water proofing
- No fire warning device
- Unsafe floors, stairs, porches, and handrails
- Inadequate electrical wiring (fire hazard) or
lack of electricity
- Inability to store food safely because of broken refrigeration unit (when the landlord is responsible for maintenance and repair of refrigerator)
- Unsafe structural components that make it dangerous to occupy the property
What Is Adequate Heat?
“Adequate heat” depends on your local property maintenance codes. You will need to check with your local municipality to see what the requirements are for adequate heat in a rental unit in your community. Many municipalities have adopted the International Property Maintenance Code as a standard for property maintenance. This code generally requires landlords to provide a heating system that is able to maintain a minimum temperature of 68°F (20°C) during the winter months.
In Philadelphia, landlords are required to maintain a system to provide heat at 68°F minimum from October through April. If the tenant has control of their own heat via a thermostat, the landlord is not required to keep the heat at 68°F minimum—that is left to the tenant’s discretion. Check with your local code enforcement department for the minimum heating requirements in your area.
What Remedies Can a Tenant Take if a Rental Unit Does Not Comply With the Implied Warranty of Habitability?
If the problem is serious enough to constitute a breach of the Implied Warranty of Habitability, a tenant may be entitled to seek one or more remedies.
- First, the tenant will need to show that the defect interferes with the habitability of the rental unit (or that their ability to live in the dwelling is seriously impaired).
- The tenant must notify the landlord of the problem. If there are provisions in the lease describing how to notify the landlord about defects, the tenant should be sure to follow those notice procedures when feasible.
- The tenant must allow the landlord reasonable time to repair the defective condition. How much time is reasonable time? There is no universal answer. The reasonableness will be determined by the nature of the defect and whether or not the ability to correct the defect is within the landlord’s immediate control. A reasonable time to fix a damaged roof might be measured in weeks; but lack of heat in the winter months must be remedied within a day or two at most.
- The tenant must be able to show that the landlord was either unwilling or unable to repair the property within a reasonable amount of time after being given notice of the defect before using a remedy to address the problem.
Tenant Remedies for a Breach of the Implied Warranty of Habitability
- Terminate the lease and move out
- Repair and deduct
- Withhold all or part of the rent
- File a legal action to seek compensation
Keep in Mind the Following:
- A tenant will have a viable defense to an eviction if they have properly used any of the remedies available under the Implied Warranty of Habitability.
- If a tenant has exercised one of these remedies, you may want to contact an attorney or a landlord association for advice relevant to your situation. There are limitations that apply to these remedies and proceedings. Any of these remedies can be complicated and each individual circumstance is different. Proper legal advice is invaluable.
- Be prepared in case the tenant brings a warranty issue up in court as a defense to a nonpayment of rent claim. You will need to have documentation that you corrected the defects that allegedly made the unit uninhabitable—receipts, photos, and code inspection report. You will also have to show that you corrected these defects within a reasonable amount of time. Receipts from contractors and a letter of approval from code enforcement is ideal.
- Make sure that you keep all receipts of any costs incurred in making repairs.
- Make sure that you document all repairs with before and after photos.
Remedy #1: Terminate the lease and avoiding any further duty to pay rent.
The tenant has the right to terminate the lease and move out of the premises if the tenant has given notice of the premise’s defects to the landlord and after a reasonable amount of time, the landlord was unwilling or unable to make the repairs.
If a tenant decides to use this remedy, they must vacate the leased premises. They cannot terminate the lease and remain in the property. They can lose the security deposit or be sued for non-payment of rent if they do not vacate the property. All move out procedures must be followed including surrendering all keys to the landlord.
Remedy #2: Withhold all or part of the rent until the defect is remedied.
- The tenant should give you notice, preferably in writing, that the problem exists.
- The tenant should have allowed you a reasonable time for repair.
- The tenant should be able to prove that the landlord has failed to make the repairs requested.
- Consult an attorney if you are unsure of how to proceed, have concerns about defending yourself against a violation of the implied warranty, or need additional information.
Remedy #3. Repair defects and deduct the cost of repairs from the monthly rent.
- Before proceeding, the tenant should give the landlord notice in writing that they intend to exercise this remedy and submit cost estimates.
- The amount must be reasonable and necessary to make the dwelling unit habitable.
- The tenant will need to notify the landlord again when the work is completed.
- A tenant is not permitted to deduct for the expenses that make the dwelling unit more desirable. Only costs incurred to make the premises safe and compliant with the warranty of habitability are deductible.
- The tenant should provide receipts of any costs incurred in making repairs.
Remedy #4: File legal action to recover cost of repairs, a retroactive rent rebate, and/or compensation for any other damages suffered while the dwelling unit was not habitable.
- A tenant can take this legal action if they are still living in the home or if they are moving out.
- The burden is on the tenant to prove that the Implied Warranty of Habitability prerequisites were followed and that expenses or other losses have been incurred due to the landlord’s breach of the Implied Warranty of Habitability.
Who Is Responsible for Extermination?
The Implied Warranty of Habitability requires a landlord to provide safe and sanitary conditions for tenants. An apartment or house infected with bed bugs, cockroaches, fleas, mice, or other vermin is not in a safe and sanitary condition. A code officer may come out to the property to inspect and issue a citation to the landlord if an infestation exists. Tenants may be able to exercise legal remedies to deal with the infestation themselves if the landlord refuses to exterminate. Remember that the Implied Warranty of Habitability cannot be waived and any attempt to waive it is void and unenforceable. This applies to extermination as well. Lease terms attempting to make the tenant responsible for all extermination costs may not be enforceable. If the landlord can prove that the property was free of all infestation and the tenant is responsible for the infestation, the landlord can try to seek damages to recover the cost of extermination.
Repairs Not Covered Under the Implied Warranty of Habitability
Cosmetic repairs such as repainting or installing upgraded cabinetry or fixtures are not included in the Implied Warranty of Habitability. If the lease does not address repainting the apartment and if a tenant alters the condition of the property by repainting, then generally, the landlord is not responsible for reimbursing the tenant for costs. The landlord can require the tenant to return the property to its original condition when they move out. Tenants should get your permission (preferably in writing) before they repaint or make any changes to the property.